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But the USDA has now foreclosed on that option.
While a plaintiff may still “file a new suit challenging such action,” the USDA may overrule a judge’s decision to grant “appropriate preliminary relief” even with a showing of “any present or imminent risk of likely irreparable harm.”
While the rule under the amended law is temporary, word is its supporters are already moving to make it permanent. And you’re naïve or stupid if you think other federal agencies won’t be seeking the same power to override judges' decisions they don’t like. That's why groups like the ACLU oppose the measure.
Judicial oversight is one of the few things that keeps us from absolute tyranny. It doesn’t mean that courts always get it right. They don’t. Far from it. It also doesn’t mean that frivolous suits don’t flourish. They do.
But to say that courts should do a better job of weeding out frivolous lawsuits is a far cry from arguing that the Legislative Branch, in cahoots with the Executive Branch, should usurp the role of the Judicial Branch.
Apparently, even USDA secretary Tom Vilsack shares some of these concerns about the amendment’s unconstitutional nature.
“Secretary Vilsack has asked the Office of General Council (sic) to review this provision,” the USDA told Politico this week, “[a]s it appears to pre-empt judicial review of a[n] action which may make the provision unenforceable.”
Decisions about whether GMOs (or any other food product) are awesome, terrible, or somewhere in between should be left to the greatest extent possible up to individual producers and consumers.
In that vein, I find it ludicrous that companies like Monsanto are required to petition for USDA approval for many GMO crops before they’re sold and planted. That sort of Precautionary Principle creep no doubt rests at the heart of this new GMO amendment. But the right answer here isn’t to handcuff the judiciary. Instead, revoke the approval requirement.
Consumers, farmers, and others who have a justiciable claim that a farm or food product has caused them harm must have judicial recourse. No agency may bargain away that right. The Constitution (or, at least, 210 years of constitutional interpretation) demands it. No food, no government, no corporation, and no person--even one in the "exalted station” Chief Justice Marshall identified in 1803--is above judicial review in this country.
*Column title changed to reflect the fact several liberartarians, including those noted in this article, support the measure and several progressives, including those noted in this article, support a constitutional argument against the GMO law.